CYBERSTALKING LAW AND THE RIGHT TO FREEDOM OF …

An Open Access Journal from The Law Brigade Publishers 75

Indian Politics & Law Review Journal (IPLRJ) ISSN 2581 7086 Volume 6 - 2021

CYBERSTALKING LAW AND THE RIGHT TO FREEDOM

OF EXPRESSION IN NIGERIA: A DEAD RINGER OR A

CONSTITUTIONAL SNAG?

Written by Abiodun Ashiru

Lecturer, Faculty of Law, Lagos State University, Ojo, Lagos, Nigeria

ABSTRACT

Freedom of Expression is one of the most essential human rights which is entrenched in several

legal documents in the world, be it local, regional or international. It is a cornerstone upon

which the very existence of a democratic society rests. Due to its important nature, any

restriction placed or imposed on this right must be impartial and reasonably justifiable in a

democratic society. With technology evolving through the use of text messaging, email, and

social media, instantaneous communication has increased the risk of unwanted and repeated

harassment. Cyberstalking is the act of threatening, harassing, or annoying someone through

multiple email messages, as through the Internet, especially with the intent of placing the

recipient in fear that an illegal act or an injury will be inflicted on the recipient. Cyberstalking

is criminalised by section 24 of the Cybercrime (Prohibition, Prevention, etc) Act 2015 by the

Nigerian government. This paper examines the fate and status of the right to freedom of

expression as entrenched under the Nigerian Constitution in the light of the provision of the

said section of the Cybercrime Act. The paper x-rays the arguments of some scholars that the

provision of the Cybercrime Act violates the constitutional provision of the right to freedom of

expression. The paper concludes that the Nigerian Cybercrime Act provision on cyberstalking

is a legal restriction on the right to freedom of expression in Nigeria.

Keywords: Freedom of Expression, Cyberstalking, Cybercrime, Cybercrime Act, Free Speech.

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INTRODUCTION

Freedom of expression refers to the ability of an individual or group of individuals to express

their beliefs, thoughts, ideas, and emotions about different issues free from unnecessary

governmental interference. Freedom of expression is essential to individual liberty and

contributes to political development of a democratic society. Freedom of expression covers

freedom of speech, freedom of the press, and gives individuals and communities the right to

articulate their opinions without fear of retaliation, censorship or punishment. It is an

indispensable tool for human development. The right to freedom of expression is guaranteed

by legal documents all over the globe, be it international, regional or local. As beautiful and

important as this right is, it is not an absolute right. There are several limitations placed on the

right at the various level of governance. In accordance with international practice, there are

several limitations to this right under the laws. In the US case of Masses Publishing Co. v.

Pattern,i the court noted “that words are not only keys of persuasion, but triggers of action, and

those which have no purport but to counsel the violation of law cannot by any latitude of

interpretation be a part of that public opinion which is the final source of government in a

democratic society”.ii Traditionally speaking, the limitations to the right to freedom of

expression includes sedition, defamation, copyright infringement, criminal intimidation and

insult, disclosure of official secrets, censorship, perjury, the law of contempt.

The Nigerian Federal Government in the year 2015 enacted the Cybercrime (Prohibition,

Prevention, etc.) Act (Cybercrime Act) to promote cyber-security and the protection of

computer systems and networks, electronic communications, data and computer programmes,

intellectual property and privacy rights. Section 24 of the Cybercrime Act makes provision for

Cyberstalking as a criminal offence with a punishment of up to three years imprisonment or a

fine of not more than 7 million Naira. Cyberstalking is a serious predatory behavior that arrives

from the evolutionary need for control in the pursuit of resources and reputation. Originally,

stalking involved behavioral invasion and referred to non-electronic means of intrusion (e.g.,

physical surveillance, mailing letters).iii Cyberstalking can have major psychosocial impacts on

individuals. Victims report a number of serious consequences of victimization such as

increased suicidal ideation, fear, anger, depression, and post-traumatic stress disorder (PTSD).

Since the enactment of the Cybercrime Act, there has been series of arguments regarding the

constitutionality of the section 24 of the Act.iv This argument even resulted into a case being






filed challenging the constitutionality of the said provision.v This article examines the various

arguments emanating from this subject.

THE INTERNATIONAL PROTECTION OF THE RIGHT TO FREEDOM

OF EXPRESSION

The right to the freedom of expression is an essential human right that promotes democratic

governance in a political setting. The right is protected at various governmental levels including

under international law. This article examines the protection of the right to freedom of

expression at the international level. Some of the international legal instruments which protect

the right to freedom of expression are discussed hereunder.

The Universal Declaration of Human Rights

Since its inclusion in Article 19 of the Universal Declaration of Human Rights (UDHR),vi the

right to freedom of expression has been protected in all of the relevant international human

rights treaties. In international law, freedom to express opinions and ideas is considered

essential at both an individual level, insofar as it contributes to the full development of a person,

and being a foundation stone of democratic society. Free speech is a necessary precondition to

the enjoyment of other rights, such as the right to vote, free assembly and freedom of

association, and is essential to ensure press freedom. Article 19 of the UDHR provides that

everyone has the right to freedom of opinion and expression; this right includes freedom to

hold opinions without interference and to seek, receive and impart information and ideas

through any media and regardless of frontiers. Freedom of opinion and expression are

fundamental rights that contain both a personal and a social dimension. They are considered

“indispensable conditions for the full development of the person”, “essential for any society”

and a “foundation stone for every free and democratic society”.vii The UDHR provides for the

right to freedom of expression without placing any limitation on the right.

The International Covenant on Civil and Political Rights

The United Nations International Covenant on Civil and Political Rights (ICCPR)viii guarantees

the right to freedom of expression.ix Article 19 of the Covenant provides that everyone shall

have the right to freedom of expression; this right shall include freedom to seek, receive and






impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in

print, in the form of art, or through any other media of his choice. The right to freedom of

expression is both individual and collective, and imposes both positive and negative obligations

on States. The European Court of Human Rights (ECtHR) noted in the foundational case of

Lingens v Austriax that “freedom of expression constitutes one of the essential foundations of

a democratic society and one of the basic conditions for its progress and for each individual’s

self-fulfillment.” However, this right is not absolute and can be subject to legitimate restrictions

and limitations. It is supported by and can come into conflict with the other rights that are

protected by the International Covenant on Civil and Political Rights (ICCPR) or other treaties

and conventions, including the right to a fair trial, the right to freedom of conscience and

religion, and the right to privacy. When these interests come into conflict, they need to be

weighed and balanced in light of the surrounding context.xi

The International Convention on the Elimination of All Forms of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discriminationxii

guarantees freedom of expression under Article 5(d)(vii) and (viii) as the rights to freedom of

thought, conscience and religion and the freedom of opinion and expression, respectively.

Article 5 states:

In compliance with the fundamental obligations laid down in article 2 of this

Convention, States Parties undertake to prohibit and to eliminate racial discrimination

in all its forms and to guarantee the right of everyone, without distinction as to race,

colour, or national or ethnic origin, to equality before the law, notably in the enjoyment

of the following right:

(d) Other civil rights, in particular:

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression.

The Convention on the Rights of the Child

The Convention on the Rights of the Child (CRC) protects the freedom of expression of

children under Article 12 and Article 13. Article 12 states:






1. States Parties shall assure to the child who is capable of forming his or her own views the

right to express those views freely in all matters affecting the child, the views of the child being

given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any

judicial and administrative proceedings affecting the child, either directly, or through a

representative or an appropriate body, in a manner consistent with the procedural rules of

national law.

Article 13 on the other hand states:

1. The child shall have the right to freedom of expression; this right shall include freedom

to seek, receive and impart information and ideas of all kinds, regardless of frontiers,

either orally, in writing or in print, in the form of art, or through any other media of the

child’s choice.

The second paragraph to Article 13 of the Convention provides for the restrictions placed on

the right to the freedom of expression. The paragraph provides that the exercise of this right

may be subject to certain restrictions, but these shall only be such as are provided by law and

are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (order public), or of public health

or morals.

International Convention on the Protection of the Rights of All Migrant Workers and

Members of their Families

The International Convention on the Protection of All Migrant Workers and Members of their

Families (ICMW)xiii protects the freedom of expression under Article 13. Article 13 states:

1. Migrant workers and members of their families shall have the right to hold opinions without

interference.

2. Migrant workers and members of their families shall have the right to freedom of expression;

this right shall include freedom to seek, receive and impart information and ideas of all kinds,






regardless of frontiers, either orally, in writing or in print, in the form of art or through any

other media of their choice.

3. The exercise of the right provided for in paragraph 2 of the present article carries with it

special duties and responsibilities. It may therefore be subject to certain restrictions, but these

shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputation of others;

(b) For the protection of the national security of the States concerned or of public order (order

public) or of public health or morals;

(c) For the purpose of preventing any propaganda for war;

(d) For the purpose of preventing any advocacy of national, racial or religious hatred that

constitutes incitement to discrimination, hostility or violence.

THE REGIONAL PROTECTION OF THE RIGHT TO FREEDOM OF

EXPRESSION

Regional intergovernmental organizations, including the Organization of American States

(OAS), Council of Europe (COE), African Union (AU), and Arab League each have Charters

that generally share the principles and fundamental human rights protections championed in

the UDHR and the UN Charter, including the right to freedom of expression. Each of these

organizations has reporting bodies and/or judicial/quasi-judicial mechanisms that consider

human rights issues more specifically.xiv

The American Convention on Human Rights

The American Convention on Human Rights (ACHR) is the multilateral human rights treaty

of the Organization of American States. Article 13 of the Convention defines the right to

freedom of thought and expression, and includes the freedom to seek, receive, and impart

information of all kinds, regardless of frontiers, through any medium. Subsections 2 through 5

outline the permissible limits to this right. Article 13 of the American Convention on Human

Rights states:






1. Everyone has the right to freedom of thought and expression. This right includes freedom to

seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either

orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior

censorship but shall be subject to subsequent imposition of liability, which shall be expressly

established by law to the extent necessary to ensure:

(a) respect for the rights or reputations of others; or

(b) the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse

of government or private controls over newsprint, radio broadcasting frequencies, or equipment

used in the dissemination of information, or by any other means tending to impede the

communication and circulation of ideas and opinions.

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject

by law to prior censorship for the sole purpose of regulating access to them for the moral

protection of childhood and adolescence.

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that

constitute incitements to lawless violence or to any other similar action against any person or

group of persons on any grounds including those of race, color, religion, language, or national

origin shall be considered as offenses punishable by law. Considering the principles of Article

13, the Inter-American Commission on Human Rights (IACHR) issued the Declaration of

Principles on Freedom of Expression in 2000. This Declaration further details the components

and limitations of this right, such as privacy laws, confidentiality of journalistic sources, and

ownership and control of media sources.

The European Convention on Human Rights

The Council of Europe (COE) oversees the European Convention on Human Rights (ECHR).

This Convention recognizes the right to freedom of expression under Article 10. This includes

the right to hold opinions, and to receive and impart ideas and information without interference

regardless of frontiers, as well as the duties and restrictions that may also be imposed on the

right. Article 10 of the European Convention on Human Rights states:






1. Everyone has the right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not prevent States from requiring the

licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national security, territorial integrity or

public safety, for the prevention of disorder or crime, for the protection of health or morals, for

the protection of the reputation or rights of others, for preventing the disclosure of information

received in confidence, or for maintaining the authority and impartiality of the judiciary.

The African Protection of the Right to Freedom of Expression

The African Charter on Human and Peoples’ Rights (ACHPR; also known as the “Banjul

Charter”) was adopted in 1981 and entered into force in 1986, articulate the right to freedom

of expression under Article 9. The article simply states that “(1) Every individual shall have

the right to receive information; (2) Every individual shall have the right to express and

disseminate his opinions within the law.” In 2002, the 32nd session of the ACHPR outlined the

Declaration of Principles of Freedom of Expression, which reaffirms and elaborates on the

rights described in Article 9. It contains sections on the interference with the right to freedom

of expression, the promotion of diversity within freedom of expression, freedom of

information, the stance of private and public broadcasting, regulatory bodies, and print media,

and various protections for media professionals, reputations, and journalistic sources.

Further, the African Charter on Values and Principles of Public Service and

Administration was adopted in 2011. It is one of the several laws adopted by the African

Union that respect the right to freedom of expression. Article 6 of the Charter affirms the right

to information and expression when it provides that Public Service and Administration shall

establish effective communication systems and processes to inform the public about service

delivery, to enhance access to information by users, as well as to receive their feedback and

inputs.

Similarly, the African Charter on Democracy, Elections and Governance was adopted in

2007. The Charter promotes rule of law, democratic principles and good governance in Africa.






Article 13 of the Charter provides that State Parties shall take measures to ensure and maintain

political and social dialogue, as well as public trust and transparency between political leaders

and the people, in order to consolidate democracy and peace.

In the case of Lohe Issa Konate v. Burkina Faso,xv the applicant was sentenced to 12 months

imprisonment and directed to pay huge amount of money for his post which was alleged to

have been defamatory and insulting to a Magistrate. The judgment was communicated to the

African Court on Human and Peoples’ Rights (African Court), the Court held that Burkina Faso

infringed on the right of the applicant as contained Article 9 of the African Charter, Article 19

of the ICCPR, and Article 66 (2) of the Revised ECOWAS Treaty.

THE RIGHT TO FREEDOM OF EXPRESSION UNDER THE NIGERIAN

LAW

The most important document protecting the human rights of the Nigerian citizens is the

Constitution. The extant Constitution of Nigeria is the 1999 Constitution which has been

amended and altered several times.xvi The Constitution is supreme and it remains the most

important legal document in Nigeria as its superiority has been upheld in plethora of judicial

authorities.xvii Chapter IV of the Constitution comprising of sections 33 to 46 guarantees

various human rights. These rights are however termed ‘fundamental’ suggesting that they are

not mere rights. The Nigerian Constitution provides for the right to freedom of expression by

stating that everyone shall be entitled to freedom of expression, including freedom to hold

opinions and to receive and impart ideas and information without interference.xviii This

provision literally means that all persons, natural or artificial, Nigerians and foreigners do have

a right to express themselves freely, to hold any opinion whatsoever, to receive and divulge

any ideas and any information, without anybody’s interference in accordance with the

provisions of the constitution. To complement the enjoyment of the right guaranteed under sub

section (1) of section 39, sub section (2) provides for the right of every person to be entitled to

own, establish and operate any medium for the dissemination of information, ideas and

opinions. The wording of the provision is very similar to the one adopted in the UDHR.xix

Ben Nwabueze, a constitutional law scholar, had commented on the said provision when he

stated that the right to freedom of expression is an essential and irrepressible attribute of






humans.xx In the case of Inspector General of Police v. All Nigeria Peoples Partyxxi the Court

of Appeal held:

“The police have no powers to stop or restrict the fundamental rights of

Nigerians to freedom of expression and assembly once those rights are exercised

within the ambit of the law. If the demonstrates or marchers breach any law in

the course of exercising their freedom of expression and assembly the Criminal

Code is there to take care of the infraction.”xxii

Freedom of expression refers to the right to speak, write, or to do anything in order to show

one’s feelings, opinion and ideas without any one restricting the freedom. Paul Adole defined

the right to freedom of expression as the right to speak, seek, receive and impart information

or ideas.xxiii In the case of Din v. African Newspaper Ltd,xxiv the Supreme Court ruled that the

right to comment freely on matters of public interest is one of the fundamental rights of free

speech guaranteed to the individual in our constitution. Also, in Omega Bank Plc v.

Government of Ekiti Statexxv the Court of Appeal held that section 39 of the Nigerian

Constitution of the Federal Republic of Nigeria, 1999 guarantees freedom of expression and

that criticism of the government/public bodies and officers is part of the freedom of expression

granted and guaranteed under the Constitution. It has been conceded that the right to freedom

of expression is the bone of any democratic form of government.xxvi

LIMITATIONS TO THE RIGHT TO FREEDOM OF EXPRESSION: THE

INTERNATIONAL AND NIGERIAN PERSPECTIVE

As important as the right to freedom of expression is, it is never an absolute right. There are

limitations placed under the right under both international and national laws. Article 19(3) of

the ICCPR permits limitations on the rights recognised in article 19(2), but those limitations

must be:

(1) provided by law and

(2) necessary for respect of the rights or reputations of others, for the protection of national

security, public order, or public health or morals.






The United Nations Human Rights Committee (HRC) in its General Comment 34 has

emphasised that when a State party imposes restrictions on the exercise of freedom of

expression, these may not put in jeopardy the right itself the relation between right and

restriction and between norm and exception must not be reversed.xxvii The HRC further stated

that Paragraph 3 lays down specific conditions and it is only subject to these conditions that

restrictions may be imposed: the restrictions must be “provided by law”; they may only be

imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they

must conform to the strict tests of necessity and proportionality...Restrictions must be applied

only for those purposes for which they were prescribed and must be directly related to the

specific need on which they are predicated.xxviii The permissible grounds for restrictions listed

in article 19(3) include restrictions on the grounds of public health or national security, where

those limitations can be demonstrated to be necessary for ensuring ‘respect for the rights and

reputations of others, for the purpose of protecting public morals, and public order. By reason

of those parameters, defamation and hate speech laws can be justifiable as protecting the

reputation and rights of others, so long as they are not overbroad. However laws, for example,

that restrict door-to-door canvassing in an election or activities such as blocking access to

media sources are likely to violate the freedom.xxix

In Nigeria, the right to freedom of expression guaranteed by the Constitution is not absolute.

In accordance with international practice, there are several limitations to this right under

Nigerian law. These limitations are geared towards enthronement of an order society.xxx The

Constitutionxxxi qualifies the right to freedom of expression in certain respects. It provides that

nothing in the section shall invalidate any law that is reasonably justifiable in a democratic

society for the purpose of preventing the disclosure of information received in confidence,

maintaining the authority and independence of courts or regulating telephony, wireless

broadcasting, television or the exhibition of cinematograph films; or Radio,

Telecommunications, Television and imposing restrictions upon persons holding office under

the Government of the Federation or of a State, members of the armed forces of the Federation

or members of the Nigeria Police Force or other Government security services or agencies

established by law. In the case of Ukegbu v N.B.C,xxxii the Court of Appeal held that the rights

contained in section 38 and 39 of the Constitution are not absolute rights and that the rights can

be regulated when it comes to wireless broadcasting, television or films.






However, any limitation placed on the right to freedom of expression in Nigeria must be

justifiable in a democratic society as provided in section 45 of the Constitution. In the case of

Archbishop Okogie v. A.G. Lagos State,xxxiii held that while it is conceded that the Constitution

permits the imposition of reasonable restrictions on the exercise of the right to freedom of

expression, it is difficult to conceive a reasonable restriction that would be justifiable in a

democratic society in refusing to allow private primary schools to operate. The generally

accepted restrictions to freedom of expression in Nigeria are the offence of sedition,xxxiv

criminal intimidation and insult,xxxv the law of defamation,xxxvi disclosure of official

secrets,xxxvii censorship, perjury,xxxviii contempt of court and contempt of legislature.

CYBERSTALKING LAW IN NIGERIA

The Internet has improved global interactions and made the world a global village with the free

exchange of information, ideas, skills, culture and technology. However, it also raises a number

of personal security risks. Some internet users (for various reasons) prey on other users and

cause havoc which affect not only personal interests but also commercial concerns.xxxix

Cyberstalking (also known as cyberbullying) is “the act of threatening, harassing, or annoying

someone through multiple email messages, as through the Internet, especially with the intent

of placing the recipient in fear that an illegal act or an injury will be inflicted on the recipient

or a member of the recipient's family or household. Cyberbullying occurs when someone is

bullied, harassed, humiliated, threatened, embarrassed, intimidated, or targeted in some way

through the use of information technology such as e-mail, instant messaging, chat rooms,

pagers, cell phones or any other online services. Cyberbullying has been called “a social online

terror”xl “a deadly epidemic”xli, “a nightmare that happens all too often,” and the cause of youth

suicides.xlii Cyberstalking is becoming a common phenomenon in Nigeria as more people

engage in it especially on social media platforms. As a means of dealing with a wide variety of

technology-based threats, the National Assembly enacted an Act called the Cybercrimes

(Prohibition, Prevention, Etc.) Act 2015. The purpose of the Cybercrimes Act is to provide an

effective and unified legal, regulatory and institutional framework for the prohibition,

prevention, detection, prosecution and punishment of cybercrimes in Nigeria. In Nigeria, the

provision of section 24 of the Cybercrime Act 2015 makes express provisions that criminalise






all forms of cyberstalking. The elements of this offence are, that the message is grossly

offensive or of an indecent, obscene or menacing character; and it is sent for the purpose of

causing annoyance, inconvenience or needless anxiety to another or causes such a message to

be sent.xliii

The Act provides the punishment for the offence as fine of not less than Two Million Naira or

imprisonment for a term of not less than one year, or to both fine and imprisonment. According

to the provisions of section 58 of the Act, cyberstalking includes a course of conduct directed

at a specific person that would cause a reasonable person to feel fear. The acts that come within

the confines of this offence may also include sending multiple e-mails, often on a systematic

basis, to annoy, embarrass, intimidate, or threaten a person or to make the person fearful that

she or a member of her family or household will be harmed.xliv For the purpose of clarity, the

provision of section 24 of the Cybercrime Act is reproduced hereunder:

Any person who knowingly or intentionally sends a message or other matter by means of

computer systems or network that-

(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or

causes any such message or matter to be so sent; or

(b) he knows to be false, for the purpose of causing annoyance, inconvenience danger,

obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to

another or causes such a message to be sent:

Commits an offence under this Act and shall be liable on conviction to a fine of not more

than N7, 000,000.00 or imprisonment for a term of not more than 3 years or to both

such fine and imprisonment.

(2) Any person who knowingly or intentionally transmits or causes the transmission of

any communication through a computer system or network -

(a) to bully, threaten or harass another person, where such communication places

Another person in fear of death, violence or bodily harm or to another person;

(b) containing any threat to kidnap any person or any threat to harm the person of

another, any demand or request for a ransom for the release of any kidnapped person, to






extort from any person, firm, association or corporation, any money or other thing of

value; or

(c) containing any threat to harm the property or reputation of the addressee or of

another or the reputation of a deceased person or any threat to accuse the addressee or

any other person of a crime, to extort from any person, firm, association, or

corporation, any money or other thing of value:

Commits an offence under this Act and shall be liable on conviction-

(i) in the case of paragraphs (a) and (b) of this subsection to imprisonment for a term of

10 years and/or a minimum fine of N25,000,000.00; and

(ii) in the case of paragraph (c) and (d) of this subsection, to imprisonment for a term of

5 years and/or a minimum fine of N15,000,000.00.

The above provision of the Cybercrime Act relates to cyberstalking and this provision has been

largely criticised by many Nigerians including legal practitioners. The criticisms centers

around the argument that the provision is a violation of the right to freedom of expression

entrenched in the Nigerian Constitution. The provision has even been challenged in the court

of law for violation the Constitution. In the case of Okedara v. A.G. Federation,xlv the Court

of Appeal in Lagos dismissed a challenge to the constitutionality of Section 24(1) of the

Cybercrime Act, 2015 on the ground that it lacked merit. Affirming the judgment of Buba J. of

the Federal High Court, the Court disagreed with the Appellant that the provision was vague,

overbroad and ambiguous and threatened his rights to freedom of expression under Section 39

of the Constitution and was not within the permissible restrictions pursuant to Section 45 of

the Constitution. Instead the Court of Appeal found Section 24(1) of the Cybercrime Act to be

clear and explicit and not in conflict with the provisions of Sections 36(12), 39 and 45 of the

1999 Constitution. The Court equally rejected the Appellant’s argument that section 24 of the

Act does not satisfy the requirements of section 36(12) of the Constitution holding that in its

view the words in section 24(1) of the Act are “explicit and leave no room for speculation or

logical deductions.” The Court held that the offence in the relevant section of the Act is clearly

defined and the punishment is also clearly stated. It therefore concluded that the provisions of

section 24(1) of the Cybercrime Act, 2015 are not in conflict with the provisions of sections

36(12) and 39 of the Constitution. The Court unanimously held that the Appellant’s appeal was






devoid of merit and deserved to be dismissed. It accordingly dismissed the appeal and affirmed

the judgment of the lower court delivered by Buba J. of Federal High Court. In a similar stand,

the applicant took out an originating summons with Suit No. FHC/L/CS/692/16 at the Federal

High Court on behalf of Paradigm Initiative (PIN), EiE Nigeria (EiE) in a case involving the

Media Rights Agenda (MRA) against the Attorney General of the Federation, the National

Assembly and the Inspector General of Police seeking certain declarative reliefs nullifying

Sections 24 and 38 of the Cybercrime Act. The Court rejected the application of the applicant

and upheld the constitutionality of the section 24 of the Cybercrime Act. Dissatisfied with the

decision of the court, the applicant immediately appealed. The appeal was dismissed on June

1, 2018. The case was further appealed to the Supreme Court and the court is yet to give a

verdict over the matter.

Meanwhile, a similar suit challenging the constitutionality of the provision of the Cybercrime

Act was filed at the ECOWAS Community Court of Justice. In the case of Incorporated

Trustees of Laws and Rights Awareness Initiative v. the Federal Republic of Nigeria.xlvi After

the hearing of this suit, the court delivered a judgment compelling the Nigerian court to repeal

or amend the Cybercrime (Prohibition, Prevention etc) Act 2015. The Court specifically held

that it is not enough that the restrictions are established by law, it must be formulated with

sufficient precision, that is, it must be sufficiently clear to allow the individual to adapt his

conduct to its predictions and still allow the enforcers of the rule to determine which forms of

expression are legitimately restricted and which are duly restricted; the provisions of section

24 of the law in question typify criminal conduct and define the applicable sanctions. For this

reason, in all its ramifications, it must be legally well written and its elements clearly defined

to avoid any ambiguity in their meanings and; it can be concluded that when a law does not

define the parameters or elements of the crime that it typifies, it cannot pass the test of legality

since, by its nature, it will be arbitrary. Consequently, it orders the Nigerian Government to

repeal and amend Section 24 of the Cybercrime Act 2015 in accordance with its obligation

under Article 1 of the African Charter and International Covenant on Civil and Political Rights.

This paper conceives that the provision of the Cybercrime Act is a limitation to the right to

freedom of expression in Nigeria. Freedom of speech and expression is a constitutionally

guaranteed right of a person to hold opinions and to receive and impart ideas and information

without interference. It is clear that this right is limited by the provisions of Section 24 of the






Cybercrimes Act, which states that such ‘opinions, ideas, and information’ must not be

obscene, malicious, or false. Such information must not also contain the threat to harm the

property or reputation of the addressee. It is also apparent that the right to freedom of speech

only extends to the limit that it does not cause harm to another person. The implication of the

combination of both laws is that a person is allowed freedom to use electronic means (including

the internet) to give his or her opinion on matters which are the truth and will not cause damage

to the victim.

IS THE CYBERSTALKING LAW REASONABLY JUSTIFIABLE IN A

DEMOCRATIC SOCIETY?

In this part of the paper, the paper seeks to evaluate the cyberstalking law in Nigeria for the

purpose of determining its reasonability. This paper had earlier posited that for any limitation

placed on the right to freedom of expression in Nigeria to be deemed valid, it must be such that

is reasonably justified in a democratic society as provided under the Nigerian Constitution.xlvii

In countries with strong democratic institutions, deeply embedded liberal democratic values, a

vibrant civil society, and a good record of human rights, open-ended and even vague limitations

clauses, which leave a lot of discretion to legislatures and courts, may be acceptable. This is

because unnecessary encroachments are likely to be politically resisted by the legislature, by

the courts, and by public opinion, at least as long as these values endure. This puts a premium,

however, on civic education and on the maintenance of democratic values and norms in society

at large.xlviii Section 45 of the Nigerian Constitution provides that nothing in sections 37, 38,

39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a

democratic society in the interest of defence, public safety, public order, public morality or

public health or for the purpose of protecting the rights and freedom of other persons. In the

case of the Director of Public Prosecutions v. Chike Obi,xlix the defendant was charged with

the offence of Sedition. He complained that the provision of the Criminal Code providing for

the offence violates his right to the freedom of expression. The court ruled that the provision

of the Constitution relating to Fundamental Human Rights has not in any way invalidated the

Law of Sedition as contained in sections 50 and 51 of the Criminal Code insofar as these

sections relate to the matters under consideration in this reference. In other words, the court






held that the said provision of the Criminal Code is reasonably justifiable in a democratic

society. The Federal Supreme Court opined thus:

“a person has a right to discuss any grievance or criticise, canvass and ensure the acts

of Government and their public policy. He may even do this with a view to effecting a

change in the party in power or to call attention to the weakness of a Government so

long as he keeps within the limit of fair criticism. It is clearly legitimate and

constitutional by means of fair argument to criticise the Government of the day. What

is not permitted is to criticise the Government in a malignant manner as described

above, for such attacks, by nature tend to affect the public peace.”l

With the advent of internet and in the wake of online communications, stalking and harassment

of persons have increased unimaginably. Undoubtedly, Nigeria has a problem with advance-

fee scams and one that has quickly morphed into cyber-criminality; one, most of all that

continues to tarnish Nigeria’s image in the international community. The first cybercafes

appeared in Nigeria in the late 1990s; spacious and swanky in some areas, cramped and stuffy

in other places but, nonetheless, spaces that depicted the world’s commitment to globalise.

Cybercafes opened up large and small in major cities all over the country, often working around

the clock and providing a window to the Internet at agreeable financial rates. These

establishments opened their doors and Nigerians visited them in droves for a multiplicity of

reasons, academic, exploratory, familial and fraudulent. There is a long-standing association

of Nigeria with cyber-fraud. The origin of these scams in the country can be traced to the 1980s:

beset by flailing oil prices, crude oil being Nigeria’s primary source of income, the Shehu

Shagari administration oversaw a period of economic decline that caused a spike in

unemployment rates and a billowing poverty problem that kick-started the postal fraud era.

Perpetrators promised their marks, mostly British-American for ease of conversation,

percentages of illicit riches (from corrupt governmental institutions) they were trying to

transfer out of Nigeria in return for help in providing sensitive financial details. Typically,

perpetrators required a foreign a bank account to receive the wealth abroad and, crucially, an

advance fee to sort out ‘domestic issues’.li Among a considerable number of Nigerians,

cybercrime exists at the intersection of crime and means of livelihood; wrong but necessary.

This complication also exposes the fractured state of the national psyche in Nigeria today. In






the earliest days of postal and online fraud, perpetrators were scorned and derided for the

illegitimate source of their wealth as they flaunted their dishonest returns.

Given the popularity and peculiarity of Cybercrime in Nigeria, the Nigerian Government

enacted a legislation to curb the vice. The Cybercrime Act criminalises various forms of

cybercrime. The Cybercrime Act prohibits cyberstalking in order to effectively regulate the

spread of false stories and sometimes also indecent or unethical images online. Section 24 (1a)

of the act states that any person who knowingly or intentionally sends a message or other matter

by means of a computer system or network that “is grossly offensive, pornographic or of an

indecent, obscene or menacing character or causes any such message or matter to be sent” has

committed an offence under the Act and shall be eligible for prosecution. Also, Subsection 1b

provides that any person who knowingly or intentionally spreads messages or other matter by

means of a computer network system that “he knows to be false, for the purpose of causing

annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity,

hatred, ill will or needless anxiety to another or causes such a message to be sent” faces the

same possibility of punishment.

One cannot agree less with the decision of the Federal Government to punish online stalking

which has been reported to have done several harms. This paper thereby align itself with the

decision of both the Federal High Court and the Court of Appeal in Okedara’s case that the

provision of the Cybercrime Act criminalising cyberstalking is reasonably justifiable in a

democratic society, hence it is a constitutional provision.

CONCLUSION AND RECOMMENDATION

Freedom of expression is a fundamental human right that must be upheld in democratic

societies. Freedom of expressions is absolutely very important to everybody, and it is

meaningful to protected, but to make minority also enjoy the benefit of free speech, itis very

important for government to make a protection to protect them. However, the right is not

absolute and it can be limited in several circumstances as long as the restriction is

constitutional. Cyberstalking has become a very real problem in today's world, one that can

have devastating consequences for victims, especially in cases of obsession or derangement.

Virtually everybody can become the victim of cyberstalking. Perpetrator's conduct can include






annoying or threatening emails (including threats of rape and physical violence or lustful,

obscene or vulgar words), malicious comments on websites or false website ads, illegal access

to victim’s e-mail account, impersonation in chat rooms, creation of webpages pages under

victim’s name, publication of Twitter posts, posting of nude photos or lewd videos on

Facebook, use of malware etc. This research paper has examined the right to freedom of

expression under international, regional and the Nigerian law. In addition to this, the research

examined the limitations to the right and considers whether the provision of section 24 of the

Nigerian Cybercrime Act is a violation of the right or a limitation to the right.

This paper hereby recommends the adoption of a law to serve as international legal response

to cyberstalking. If this is done, the law can be used as a model for other countries to design

their cyberstalking on. The paper further recommends that there is a need to have collaboration

between the ICT experts and the prosecutors towards an effective prosecution of the

perpetrators of cyberstalking.

ENDNOTES

i 244 F. 535 (S.D.N.Y. 1917). ii Ibid at 540; see also Yinka Olomojobi, Human Rights and Civil Liberties in Nigeria: Discussion, Analyses, and

Explanations (Revised Edition, Princeton and Associates Publishing Co. Ltd, Lagos, 2018) 229. iii Abiodun Ashiru, A Comparative Analysis of the Legal Framework for the Criminalisation of some forms of

Cybercrime in Nigeria, England and the United States (An LLM Dissertation Submitted to the Faculty of Law,

University of Lagos, 2020) available at

https://www.researchgate.net/publication/348182366_A_Comparative_Analysis_of_the_Legal_Framework_for

_the_Criminalisation_of_some_Forms_of_Cybercrime_in_Nigeria_England_and_the_United_States, accessed

January 10, 2021. iv Section 24 of the Cybercrime Act criminalises Cyberstalking. v In Okedara v Attorney General of the Federation, the plaintiff appellant sued the Federal government claiming

that the section 24 of the Cybercrime Act was vague and overbroad and that it threatened his right to freedom of

expression (protected by section 39 of the Constitution) and a fair hearing (protected by section 36(12) of the

Constitution). vi The Universal Declaration of Human Rights remains as relevant today as it was on the day in 1948 that it was

proclaimed and adopted by the United Nations General Assembly. The extraordinary vision and resolve of the

drafters produced a document that, for the first time, articulated the rights and freedoms to which every human

being is equally and inalienably entitled. The Universal Declaration of Human Rights, which was adopted by the

UN General Assembly on 10 December 1948, was the result of the experience of the Second World War. With

the end of that war, and the creation of the United Nations, the international community vowed never again to

allow atrocities like those of that conflict happen again. World leaders decided to complement the UN Charter

with a road map to guarantee the rights of every individual everywhere. The document they considered, and which

would later become the Universal Declaration of Human Rights, was taken up at the first session of the General

Assembly in 1946. The first draft of the Declaration was proposed in September 1948 with over 50 Member States

participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General Assembly,

meeting in Paris, adopted the Universal Declaration of Human Rights with eight nations abstaining from the vote




https://www.researchgate.net/publication/348182366_A_Comparative_Analysis_of_the_Legal_Framework_for_the_Criminalisation_of_some_Forms_of_Cybercrime_in_Nigeria_England_and_the_United_States

https://www.researchgate.net/publication/348182366_A_Comparative_Analysis_of_the_Legal_Framework_for_the_Criminalisation_of_some_Forms_of_Cybercrime_in_Nigeria_England_and_the_United_States



but none dissenting. The entire text of the UDHR was composed in less than two years. At a time when the world

was divided into Eastern and Western blocks, finding a common ground on what should make the essence of the

document proved to be a colossal task. vii (UN Human Rights Committee, 2011, para. 2). viii The ICCPR attempts to ensure the protection of civil and political rights. It was adopted by the United Nations’

General Assembly on December 19, 1966, and it came into force on March 23, 1976. The ICCPR recognizes the

inherent dignity of each individual and undertakes to promote conditions within states to allow the enjoyment of

civil and political rights. Countries that have ratified the Covenant are obligated “to protect and preserve basic

human right [and] “compelled to take administrative, judicial, and legislative measures in order to protect the

rights enshrined in the treaty and to provide an effective remedy.” There are currently 74 signatories and 168

parties to the ICCPR. The unifying themes and values of the ICCPR are found in Articles 2 and 3 and are based

on the notion of non-discrimination. Article 2 ensures that rights recognized in the ICCPR will be respected and

be available to everyone within the territory of those states who have ratified the Covenant (State Party). Article

3 ensures the equal right of both men and women to the enjoyment of all civil and political rights set out in the

ICCPR. ix ICCPR, Article 19. x (Application no. 9815/82) ECHR 1986, at para 41. xi For instance, conflicts with other protected rights is discussed in the context of Article 10 of the European

Convention; see also Monica Makovei, Freedom of Expression: A Guide to the Implementation of Article 10 of

the European Convention on Human Rights (Strasbourg Cedex: Council of Europe, 2004) 6. xii The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United

Nations convention. A third-generation human rights instrument, the Convention commits its members to the

elimination of racial discrimination and the promotion of understanding among all races. The Convention also

requires its parties to outlaw hate speech and criminalize membership in racist organizations. The Convention also

includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led

to the development of a limited jurisprudence on the interpretation and implementation of the Convention. The

convention was adopted and opened for signature by the United Nations General Assembly on 21 December 1965,

and entered into force on 4 January 1969. As of July 2020, it has 88 signatories and 182 parties. The Convention

is monitored by the Committee on the Elimination of Racial Discrimination (CERD). xiii The Convention constitutes a comprehensive international treaty regarding the protection of migrant workers'

rights. It emphasizes the connection between migration and human rights, which is increasingly becoming a

crucial policy topic worldwide. The Convention aims at protecting migrant workers and members of their families;

its existence sets a moral standard, and serves as a guide and stimulus for the promotion of migrant rights in each

country. In the Preamble, the Convention recalls conventions by International Labour Organization on migrant

workers: Migration for Employment Convention (Revised), 1949, Migrant Workers (Supplementary Provisions)

Convention, 1975, and on forced labour; Forced Labour Convention and Abolition of Forced Labour Convention

as well as international human rights treaties including Convention against Discrimination in Education. The

primary objective of the Convention is to foster respect for migrants' human rights. Migrants are not only workers,

they are also human beings. The Convention does not create new rights for migrants but aims at guaranteeing

equality of treatment, and the same working conditions, including in case of temporary work, for migrants and

nationals. The Convention innovates because it relies on the fundamental notion that all migrants should have

access to a minimum degree of protection. The Convention recognizes that regular migrants have the legitimacy

to claim more rights than irregular immigrants, but it stresses those irregular migrants must see their fundamental

human rights respected, like all human beings. xiv Katie Bresner, Understanding the Right to Freedom of Expression : An International Law Primer for

Journalists (University of Toronto Faculty of Law, International Human Rights Program, Rachel Pulfer, 2014)

14. xv Application No. 004/2013, Judgment of 5 December 2014. xvi The Constitution of the Federal Republic of Nigeria 1999 (4th Alteration 2010). xvii Shugaba v Minister of Internal Affairs (1981) 2 NCLR 45; A.G. Bendel State v.A.G. Federation &22 Ors

(1981) All NLR 85 SC; A.G. Ogun State & Ors. v. A.G. Federation (1982) 3 NCLR 166 SC. xviii Constitution of Nigeria 1999, s. 39. xix See the UDHR, Article 19. xx Ben Nwabueze, the Presidential Constitution of Nigeria (Sweet & Maxwell) 462. xxi (2007) 18 NWLR (Pt.1066) 457 C.A. xxii Ibid, Per Adekeye, J.C.A. (P. 28, Paras. F-G). xxiii Paul Adole, “ Freedom of Expression in a Democratic Society: The Latitudes and Limits under Nigerian Law”

(2009) 1 (3) A.B.U.J.P.I.L 108-124.






xxiv (1990) 3 N.W.L.R [Pt. 139] 392 at 408-409. xxv (2007) ALL FWLR [Pt. 386] 658. xxvi IGP V ANPP (2007) 18 N.W.L.R [Pt. 1066] 457. xxvii Human Rights Committee, General Comment No. 34, note 4, para 21. xxviii Ibid, para 22. xxix (UN Human Rights Committee, 2011, para. 37). xxx Yinka Olomojobi, supra note 2 at 229. xxxi Constitution of Nigeria 1999, s. 39 (3). xxxii (2007) 14 NWLR (Pt. 1055) 551. xxxiii (1984) 5 NCLR 78. xxxiv The Criminal Code Act 1990, s. 51 (1). xxxv The Penal Code Act 1990, ss. 396 and 398. xxxvi The Criminal Code Act 1990, s. 59. xxxvii The Official Secrets Act 2004, s. 1 (1). xxxviii Criminal Code, s. 117. xxxix Flutterwave, Cyber-bullying: A Nigerian Perspective, available at https://flutterwave.com/us/blog/cyber-

bullying-a-nigerian-perspective, accessed January 14, 2021. xl Don’t Be Cyberbullied, Stomp Out Bullying, Available at https://stompoutbullying.org/get-

help/aboutbullying-and-cyberbullying/dont-be-cyberbullied Accessed January 5, 2021. xli John Stephens, Cyberbullying—A Deadly Epidemic,

http://webcache.googleusercontent.com/search?q=cache:C5VHQDPXnLYJ:www.kcommhtml.com/ima/

2011_04/cyberbullying.pdf+&cd=5&hl=en&ct=clnk&gl=us, accessed January 5, 2021. xlii Ibid. xliii Maitanmi Olusola, Ogunlere Samson, Ayinde Semiu, and Adekunle Yinka, “Cybercrimes and Cyber Laws in

Nigeria”, (2013) 2 (4) the International Journal of Engineering and Sciences, 19-25. xliv Chibuko Raphael Ibekwe, the Legal Aspects of Cybercrime in Nigeria: An Analysis with the UK Provisions

(A Thesis Submitted to the School of Law, University of Stirling for the Degree of Doctor of Philosophy, 2015),

242. xlv See https://globalfreedomofexpression.columbia.edu/cases/okedara-v-attorney-general/, accessed January 12,

2021. xlvi Suit NO. ECW/CCJ/APP/53/2018, JUDGEMENT No ECW/CCJ/JUD/16/20. xlvii Constitution of Nigeria 1999, s. 45 (1). xlviii Dawood Ahmed and Elliot Bulmer, Limitation Clauses, International IDEA Constitution-Building Primer

11, (Second Edition, International Institute for Democracy and Electoral Assistance (International IDEA),

Sweden, 2017) 16. xlix (FSC 56/1961) [1961] 10 (06 APRIL 1961) . l Ibid, p. 194. li The Republic, No More Insufficient Funds, available at https://republic.com.ng/august-september-2019/yahoo-

yahoo-naija/, accessed January 14, 2020.




https://flutterwave.com/us/blog/cyber-bullying-a-nigerian-perspective

https://flutterwave.com/us/blog/cyber-bullying-a-nigerian-perspective

https://stompoutbullying.org/get-help/aboutbullying-and-cyberbullying/dont-be-cyberbullied

https://stompoutbullying.org/get-help/aboutbullying-and-cyberbullying/dont-be-cyberbullied

https://globalfreedomofexpression.columbia.edu/cases/okedara-v-attorney-general/

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https://republic.com.ng/august-september-2019/yahoo-yahoo-naija/

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